Dennis in MA
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If the moot-boot wasn't good enough for Roe vs. Wade almost 50 years ago, it isn't good enough here.
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Does the Due Process Clause permit the Commonwealth of Massachusetts to shift the burden to criminal defendants charged with unauthorized possession of a firearm and/or ammunition to show authorization for possession?
Yesterday SCOTUS upheld (7-2, Gorsuch & Ginsburg in dissent) the 'separate sovereigns' exception to the Constitution's double jeopardy prohibition prohibition. Basically, federal and state governments can continue to try you for the same offense. A not guilty verdict in one court does not prevent the other government from trying you again in their court.
SCOTUSBlog
Decision
Yesterday SCOTUS upheld (7-2, Gorsuch & Ginsburg in dissent) the 'separate sovereigns' exception to the Constitution's double jeopardy prohibition prohibition. Basically, federal and state governments can continue to try you for the same offense. A not guilty verdict in one court does not prevent the other government from trying you again in their court.
SCOTUSBlog
Decision
There seem to be a lot of interesting split decisions coming from scotus lately. So much for the partisan voting. At least there is hope that the court may be honest.
That's some bullshit
Interesting. The court's ruling is mostly respecting stare decisis. Thomas has an originalist concurrence in which he explicitly rejects stare decisis as a justification for the ruling. Gorsuch has a textualist dissent in which he resolves an issue that could have plausibly gone either way in favor of individual liberty. Ginsburg's dissent is 100% about her the outcome being "unfair" rather than making any reasonable interpretation of any law or constitutional provision.Yesterday SCOTUS upheld (7-2, Gorsuch & Ginsburg in dissent) the 'separate sovereigns' exception to the Constitution's double jeopardy prohibition prohibition. Basically, federal and state governments can continue to try you for the same offense. A not guilty verdict in one court does not prevent the other government from trying you again in their court.
SCOTUSBlog
Decision
But, Thomas still sided with the majority, which is based on stare decisis and nothing more.Interesting. The court's ruling is mostly respecting stare decisis. Thomas has an originalist concurrence in which he explicitly rejects stare decisis as a justification for the ruling. Gorsuch has a textualist dissent in which he resolves an issue that could have plausibly gone either way in favor of individual liberty. Ginsburg's dissent is 100% about her the outcome being "unfair" rather than making any reasonable interpretation of any law or constitutional provision.
The analogy he used was that if you committed a crime in a different country, you could be tried in the US and the other country. He said both the feds and states have their own sovereignty (from the FF), hence you should be able to be tried in both places.
Thomas's concurrence was based on originalism. His point was that there is no evidence that at the time the Constitution was written, it restrained the prosecution of a single discrete act by both the feds and the states. So if Congress had passed a law in 1795 that overlapped with a state law, and both prosecuted, no one would have questioned that that was allowed. The balance of state/federal power was much different at the time.But, Thomas still sided with the majority, which is based on stare decisis and nothing more.
Thomas's concurrence was based on originalism. His point was that there is no evidence that at the time the Constitution was written, it restrained the prosecution of a single discrete act by both the feds and the states. So if Congress had passed a law in 1795 that overlapped with a state law, and both prosecuted, no one would have questioned that that was allowed. The balance of state/federal power was much different at the time.
I'd characterize that as a stretch, into the realm of what's recently been described as "ahistorical literalism". I think originalism is generally good, but only if supported by evidence. If you can't muster decent evidence to support a particular originalist view, then the default should be strict constructionist textualism. I think Gorsuch's textualist view is most plausible.
Rehaif came down this morning, 7-2 (Alito and Thomas in dissent - no surprise) in favor of petitioner (Rehaif). This is good. From this tweet thread: "So the government must prove not only that a defendant knowingly possessed a gun, but knew they fell into one of the categories set forth in 922(g), including felons and aliens."Actually, you're wrong. "Ignorance of the law..." is a cliche, it's not a legal doctrine. Criminal offenses generally have some mens rea, or guilty mind (intention or knowledge of wrongdoing) aspect to them.
In the case of 922, the statute clearly states "Whoever knowingly violates subsection...". There are two elements to the offense of being a prohibited person in possession of a firearm. The person has to 1) be in possession of a firearm and 2) be prohibited. In the case of Rehaif, the trial judge instructed the jury that Rehaif only had to know he was in possession of a firearm, NOT that he knew he was in the country unlawfully or that he was a prohibited person as a result.
This case has VERY broad implications. Anyone who stopped reading or comprehending when they read 'alien' or 'muslim' is missing the point entirely. There are so many people (especially in Massachusetts) who are in possession of firearms (knowingly) but are (unknowingly) prohibited persons.
The feds jam people up for this pretty frequently I think. We shouldn't want to government to win this one.
Rehaif came down this morning, 7-2 (Alito and Thomas in dissent - no surprise) in favor of petitioner (Rehaif). This is good. From this tweet thread: "So the government must prove not only that a defendant knowingly possessed a gun, but knew they fell into one of the categories set forth in 922(g), including felons and aliens."
Decision
"Knowingly" results in a scienter requirement for all elements of the crime. "Willingly" would require you actually know your actions are unlawful (e.g., you understand the law). So, no effect on the law on that front.So basically, they walked around the "do illegals have RKBA rights?" question entirely, by ruling on a technicality "the definition of knowingly" to get the case to go away.... or at least that's what it smells like.
I wonder what implications this has for "knowingly" though. For example, some guy gets an MA DUI in 1998 and pleas out for a misdafelony. Then he moves to Kansas a few years later and his friend sells him a few guns, and somehow it is discovered that he is a PP and is bagged by the feds for it- does this set up the possibility that guy could walk based on the fact that he may not have known he was a prohibited person?
-Mike
Boston4567 is right here. This ruling was ABOUT the technicality, the Court didn’t sidestep anything.So basically, they walked around the "do illegals have RKBA rights?" question entirely, by ruling on a technicality "the definition of knowingly" to get the case to go away.... or at least that's what it smells like.
I wonder what implications this has for "knowingly" though. For example, some guy gets an MA DUI in 1998 and pleas out for a misdafelony. Then he moves to Kansas a few years later and his friend sells him a few guns, and somehow it is discovered that he is a PP and is bagged by the feds for it- does this set up the possibility that guy could walk based on the fact that he may not have known he was a prohibited person?
-Mike
Boston4567 is right here. This ruling was ABOUT the technicality, the Court didn’t sidestep anything.
To your question: this is a gift to anyone with a MA OUI who doesn’t realize that they’re a prohibited person. It’s very good.
There's a doctrine called constitutional avoidance that says you should avoid ruling on constitutionality if a case can be resolved on more narrow grounds (statutory, regulatory, etc). There are very good jurisprudential reasons for this doctrine. In this case though, it wasn't necessary to use it because it wasn't a 2A case as far as I know. They don't mention 2A in the decision and SCOTUS wouldn't leave an issue that was briefed unaddressed.Was this originally a 2a case though? Or was his claim all along based on "he didn't know" vs an rkba argument? When I say they dodged, they didn't have to examine the question of whether an illegal has 2a rights.... although the implies that they don't (eg, the definition of an illegal being a pp is recognized in passing by the court) but only in a roundabout way...
-Mike
Good explanation of constitutional avoidance.There's a doctrine called constitutional avoidance that says you should avoid ruling on constitutionality if a case can be resolved on more narrow grounds (statutory, regulatory, etc). There are very good jurisprudential reasons for this doctrine. In this case though, it wasn't necessary to use it because it wasn't a 2A case as far as I know. They don't mention 2A in the decision and SCOTUS wouldn't leave an issue that was briefed unaddressed.
@Knuckle Dragger I'm not so sure that it affects MA DUIs though. I guess it depends on whether they'd consider "prohibited person" status to be an element of the crime, or whether "prohibited person" is a term of art used within the law to refer to the conditions that make one a prohibited person.
Based on the statute and the ruling, I think the latter is true, and I don't think this ruling affects it. If "being a prohibited person" were to be an element of the crime, it would essentially convert the word "knowingly" to "willingly" in the statute. That could be a plausible interpretation of the statute if it were written to define the elements of the crime that way, but it's not. I think the intersection of this ruling and an MA DUI's PP status would be limited to "the government has to prove you know you got a DUI". But it's possible that it could be interpreted as "the government has to prove you know you got a DUI, and that the maximum penalty for a DUI in MA is 2 1/2 years in prison", in which case it would indeed make the government's case much more difficult to prove.
I can only hope that Don Willett joins him on the bench. I don't care if he replaces RBG or Alito or even Thomas.Gorsuch is rapidly becoming my favorite justice.
#Gorsuchstyle. It's very interesting where he's ended up on a lot of these cases. I really like where he's come down on 'Indian' cases. It's refreshing to have a justice that's not from the eastern elite. Also, the mix on close cases in the last week has been really interesting.Gorsuch is rapidly becoming my favorite justice.
Gorsuch is rapidly becoming my favorite justice.
Gorsuch, appointed by Trump in 2017, wrote that laws passed by Congress must give ordinary people notice of what kind of conduct can land them in prison.
"In our constitutional order, a vague law is no law at all," Gorsuch added.